Sentencing Hearings

PREPARATION

It is essential to begin preparing for sentencing as soon as you start working on the case.

Begin by gathering as much background information on your client as possible, including their own account of everything about their life prior to the case. This information will help you advocate for pretrial release, a reduction in the charges, and a fair sentence. In addition to what they tell you, also look into their education history, injuries, family history, medical records, and psychological treatment. Records related to psychiatric treatment and substance abuse and treatment can help demonstrate that your client’s actions were not the result of rational decision making.

You should also ensure that your client receives a psychosexual evaluation by a forensic examiner who specializes in treating sex offenders. The examiner will assess your client’s risk level for recidivism, which in turn allows you to argue for a shorter sentence or probation.

You should recommend that your client begins therapy as soon as possible, regardless of whether or not they claim innocence or guilt. If possible, find a therapist who specializes in problematic sexual behavior. This will demonstrate to the court that your client takes the situation seriously, recognizes why their conduct was wrong, and is seeking help. The therapist can also serve as an advocate for your client during sentencing by writing a letter about their progress and treatment.

Do your best to calculate your client’s sentencing guidelines and go over it with them. This section of the handbook will aid you in determining the base offense level and which special offense characteristics apply. The enhancements were originally created to target more culpable and serious offenders, but now apply to nearly every defendant charged with a federal non-production offense. In 2019, 99.4% of defendants received a +2 increase in offense level for possessing material involving a prepubescent minor or a minor under 12, 84% received a +4 increase for possessing sadistic or masochistic material, 95% received a +2 increase for the use of a computer during the commission of the offense, and 93% receive a +2 to +5 increase for the possession of ten or more images (especially because each video counts as 75 images no matter the length).[1] Once you have adjusted the offense level based on the application of special offense characteristics, use your client’s criminal history to determine the applicable sentencing range. This information is crucial in deciding whether or not to accept a plea deal, which could result in reducing the offense level for acceptance of responsibility.

The presentence report (PSR) will include information about your client’s background, offense, and calculated sentencing guidelines. This involves an interview with your client. Prepare your client for the interview by encouraging them to be open and honest to the extent that they can without admitting to engaging in uncharged conduct. You should also attend the interview to make sure that the discussion stays within appropriate bounds. Once the PSR is prepared, you will have the opportunity to correct any inaccuracies. Be sure to preserve any objections to the guidelines calculation to be argued later at sentencing.

Always submit a sentencing memorandum. This should include a detailed history of your client’s background. It is helpful to include photographs of your client throughout their life embedded throughout the memo. You should aim to put your client’s offense in the context of their life story. Also, request that people close to your client write character letters on their behalf. Instruct them to describe their relationship with your client and to focus on specific qualities that you intend to highlight during sentencing. Include your client’s psychosexual evaluation as a sealed exhibit to the memorandum to help inform the court whether or not your client is likely to commit future sexual crimes, as well as potential risk factors and recommendations for avoiding future offenses.

[1] Breyer, C. R., Cushwa, P. K., Wroblewski, J., Cohen, K. P., & United States Sentencing Commission. (2021). Federal Sentencing of Child Pornography: Non-Production Offenses. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2021/20210629_Non-Production-CP.pdf

THE SENTENCING HEARING

During the sentencing hearing, you will have the opportunity to challenge the sentencing guidelines by advocating for a lower guideline calculation and objecting to the special offense characteristics. 18 U.S.C. § 3553(a) lists numerous factors to be considered in imposing a sentence. Of note is § 3553(a)(2)(C) instructs the court to consider the need for the sentence “to protect the public from further crimes of the defendant.” Be sure to emphasize the low recidivism rates for non-production offenders, your client’s engagement with therapy, and the psychosexual report’s risk assessment.§ 3553(a)(5) instructs the court to consider “any pertinent policy statement” issued by the Sentencing Commission. A 2012 Sentencing Commission report recommended changes in the child pornography sentencing guidelines for failing to adapt to technology, leading to heavy sentences for regularly applied sentencing enhancements.[2] In 2021, the Sentencing Commission updated the report to confirm that the guidelines had still not yet been changed accordingly.[3] Information from both of these reports can be used to inform your sentencing memo. You may also wish to refer to United States v. Kimbrough, 552 U.S. 85, 101 (2007), which permits district courts to vary from the guidelines based on policy concerns (including disagreements with the guidelines) and cases criticizing 2G2.2, such as United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) and United States v. Morace, 594 F.3d 340 (4th Cir. 2010). § 3553(a)(6) instructs the court to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” To build an argument around this, look at offenses similarly charged in your district and compare and contrast the sentences and facts with your client’s case.

Generally, it is difficult to challenge restitution in cases in which there is a known victim, as the Department of Justice maintains a database of how much each victim has been awarded. Prosecutors will often submit the same restitution requests for the same victim in multiple cases. Ensure that your client is not required to pay for damages that have already been covered in full by previous cases.

Allocution is the last chance for your client to sway the judge’s sentencing decision. A survey found that more than 80% of federal judges consider allocution important in their sentencing decision, but 20.4% think that defendants are frequently unprepared to allocate.[4] If they choose to allocute, help your client prepare by editing and practicing their draft with them. They should demonstrate that they understand the harm they caused to the victims and understand the severity of the offense. If they are not genuinely ready to accept responsibility, you should advise them against allocution.

[2] United States Sentencing Commission. (1995). Federal Child Pornography Offenses. https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Full_Report_to_Congress.pdf

[3] Breyer, C. R., Cushwa, P. K., Wroblewski, J., Cohen, K. P., & United States Sentencing Commission. (2021). Federal Sentencing of Child Pornography: Non-Production Offenses. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2021/20210629_Non-Production-CP.pdf

[4] Mark W. Bennett & Ira P. Robbins, Last Words: A Survey and Analysis of Federal Judges’ Views On Allocution In Sentencing, 65 Ala. L. Rev. 735 (2014).